from the grab-some-popcorn dept

Wow. Wow. Wow. Okay, so we have another story we've been working on concerning Brett Gibbs, a lawyer who was working for Prenda Law in California, finally answering some of the questions presented to him by a judge. We'll get that story up later, because there's a new Prenda story that has leapfrogged all the others. It appears that three separate lawsuits have now been filed -- one from Prenda itself, one from John Steele (the guy who is often considered the man behind Prenda) and Paul Duffy the actual official partner of Prenda Law (you may remember Paul from this story, in which he sent a letter insisting that Prenda Law had nothing to do with a case, despite the lawyer appearing believing they had been hired by Prenda). Jordan Rushie, a lawyer who has been following the Prenda cases pretty closely, has links to all of the filings, which we've embedded below. All three were originally filed in state courts (Prenda & Duffy in Illinois, Steele in Florida), but were quickly removed to federal courts.

These are basically defamation lawsuits with a few other claims thrown in as well. There are two named defendants in the lawsuit: Alan Cooper (a caretaker for a home of John Steele, who has accused Steele/Prenda of illegally using his name as "CEO" of companies Ingenuity 13 and AF Holdings) and Paul Godfread, Cooper's lawyer, who filed the letter alerting some judges to these concerns, and then followed it up by filing a lawsuit against Steele and Prenda on behalf of Cooper.

The other targets of the lawsuit are a bunch of unnamed John Does (and if these guys have expertise in anything, it's filing lawsuits that involve John Does), who are... a bunch of anonymous commentators concerning the various Prenda Lawsuits. It looks like they're targeting people on the two main copyright troll tracking websites out there, FightCopyrightTrolls.com and DieTrollDie.com. It's worth noting that both sites were the subject of a nice profile article in Ars Technica last week.

The three filings are similar, but not identical. The Prenda one and the Duffy one are almost identical, but the Steele one is different in a few ways, including focusing on lots and lots and lots of statements specifically about Steele. Steele's suit also does not make the "false light" claim, which means he actually realized that Florida has rejected "false light" as a tort in that state.

Still, all three suits read like obvious SLAPP suits, targeting online critics. The fact that they target Cooper and Godfread, who have a lawsuit pending against them, is ridiculous. That they then go after anonymous bloggers and commenters who have been revealing and calling attention to some of Prenda's more questionable moves seems like an obvious SLAPP situation, in which they appear to be using the lawsuit to create chilling effects and to stifle speech. Looking over the long list of quotes they pull out in the various lawsuits, the vast majority seem to be clear statements of opinion, rather than fact. And even when you could argue some of them are statements of fact -- such as referring to anyone associated with Prenda as a "criminal" or a "scammer" or calling Prenda a "fraud" or similar such things -- courts have increasingly noted that name calling in online forums does not reach the level of defamation, since the context matters. That's no guarantee, as those rulings are still limited, but it's at least a sign that these lawsuits may be overreaching in their claims (which, of course, is a key component of a SLAPP).

It is not uncommon for people in comments on blogs to go a bit far in some of their claims (and even the main authors of the two blogs above sometimes seem to make pretty strong statements that may not be fully supported by the evidence presented). However, to take that to the level of defamation feels like a pretty big stretch. If anything, these lawsuits seem more likely to be attempts to first "out" the folks behind those blogs (and some of the nastier comments) and, barring that, to scare them with chilling effects.

Of course, one interesting thing: the best defense against defamation claims, obviously, is the truth. And, it would seem that, in filing these lawsuits, Steele, Duffy and Prenda may have opened themselves up to pretty wide discovery efforts which may turn up things they probably would rather not have in court. That point alone has me wondering why they'd take this step.

On top of that, the lawsuits note that the plaintiffs are not public figures, which sets the bar much lower for defamation. Paul Duffy might be able to get away with such a claim, but John Steele would seem to have a lot more difficulty. After all, he's been the subject of detailed profiles in Forbes Magazine (which he happily participated in). Forbes doesn't do profile stories on nobodies.

It would seem important to note that both Illinois and Florida have passed anti-SLAPP laws. Florida's are fairly narrowly defined, however, and may not be useful here. Illinois, however, has as broader anti-SLAPP law that has sometimes been interpreted narrowly. Both of these are reminders for why we desperately need a federal anti-SLAPP law.

It appears that, at least for now, Steele and Duffy are representing themselves, while Prenda has another law firm representing the firm. Cooper and Godfread have signed up lawyers to represent them in both Illinois and Florida (in Illinois the lawyers, Erin Russell and Jason Sweet, both have a decently established history of fighting Prenda cases, and while I wasn't familiar with the name, the same appears to be true of Brad Patrick, who is representing them in Florida).

As always with Prenda/Steele, every time you think a story can't possibly get crazier, it seems to take another massive curve in the road. At some point, when this is all over, there's going to be an amazing book to be written about the rise (and, most likely, fall) of John Steele and his adventures in copyright trolling. The story is gripping.

from the get-to-it dept

For years, we've talked about the importance of anti-SLAPP laws, and the shame that so far, they're on a state-by-state basis -- such that many states have no anti-SLAPP laws, and many others have incredibly weak anti-SLAPP laws. If you're unfamiliar with anti-SLAPP laws, they are laws that protect free speech in a very important way. In our overly litigious society, it's quite easy for someone to file a lawsuit against you just to bully you because they don't like something you said. It's so expensive to defend yourself that many people will often back down, and hide or take down things that they said, just to get the lawsuit dropped. These are considered Strategic Lawsuits Against Public Participation -- or SLAPPs. What a good anti-SLAPP law does is allow those hit with SLAPP suits to get them dismissed quickly, easily and cheaply -- and often allow them to recoup any legal fees as well. It's a very powerful tool in states like California and Texas to stop lawsuits that are more about censorship than any legitimate purpose.

We've supported the push for a strong federal anti-SLAPP law for years, and despite two attempts to introduce one, it hasn't gotten all that far. The Public Participation Project is an organization that has really led the fight for a federal anti-SLAPP law for years. Unfortunately, even as interest has grown in a federal anti-SLAPP law, the organization recently ran out of its private funding, so it's trying an IndieGoGo campaign to raise some funds, specifically for the purpose of hiring a DC-based legislative director to lead the charge.

I will admit that I am not convinced that crowdfunding is the best way to build an advocacy organization, but it would be nice to be proven wrong on that, especially for an issue as important and pressing as this one. If you believe this is an important issue as well, please consider supporting the campaign.

from the following-the-bouncing-ball dept

This is a complex story that took a fair bit of reading to follow all the twists and turns. It involves the story of Bo Xilai, the a top Chinese politician at the heart of a somewhat crazy scandal in China that resulted in his ouster from the Communist Party, along with accusations of his wife's involvement in the murder of a British businessman, Neil Heywood, following apparent threats to to expose a questionable money trail. One of the first publications to report on all of this was a site called Boxun News (site is published in Chinese), published by Weican Null Meng, who lives in the US, but covers political scandals in China.

One of the other things that Meng reported concerned world-famous actress Zhang Ziyi, who has starred in multiple films successful in the West, including Crouching Tiger, Hidden Dragon, Rush Hour 2, House of Flying Daggers and Memoirs of a Geisha. Ziyi got upset after Boxun (and others) reported that she had been linked romantically to Bo Xilai and other high level Communist Party officials in China -- and that those officials gave her massive amounts of money. Ziyi then sued Boxun, Meng and China Free Press and went on a press campaign saying that the stories called her a "six figure prostitute."

There have been some oddities with the lawsuit -- such as the inclusion of China Free Press. While Ziyi claims that CFP is one and the same as Boxun, CFP filed a response to the lawsuit noting that it's an entirely different operation, and that while it hosts Boxun News -- as it does for a number of other Chinese citizen journalist sites -- it has nothing to do with the site, and any such claims should be barred by Section 230 of the CDA. The fact that Ziyi's lawyers were unable to figure out that these are two different sites, where one is just hosting the other, suggests some weak due diligence heading into this case.

Meanwhile, Meng, the guy who actually published the report, is standing by it, claiming multiple sources confirmed it, and citing his track record in publishing news that later turned out to be true (including some of the other reports about Xilai). He hit back (represented by Marc Randazza) claiming that this is nothing more than a SLAPP suit designed to both silence him and expose his sources. As the case has gone on, Ziyi's lawyers have continued to seek more and more information in the process of discovery while also trying to block one of Meng's expert witnesses. The most recent move, however, is that Ziyi has refused to put up a bond, as required under California law, for the potential that she might owe money should the anti-SLAPP motion prevail. Meng is asking her to put up $200,000 for legal fees accrued, and uses the motion to argue, again, that this is a SLAPP suit. The key arguments are that the defamation claim has no chance of succeeding because they're both exaggerated beyond what Meng actually wrote and because he did not make the statements maliciously, as is required for defamation of a public figure (which Ziyi obviously is).

With respect to the Plaintiff being able to prove the statements false, the
Plaintiff has a couple of insurmountable problems. First and foremost, the case
boils down to two allegedly defamatory statements.

1) The Plaintiff (falsely) claims that the Defendant called her a “prostitute.”
... However, the record clearly reflects that the Defendant did no such
thing.... In fact, the claim that she is a “prostitute” seems to have only
been uttered by third parties, including Plaintiff's own counsel....

2) The Defendant (correctly) claims that Plaintiff was not permitted to leave
China during a certain period of time....

With respect to the first statement, the record clearly reflects that this
interpretation of the defendants’ statements is a fabrication. The Defendant, at
worst, implied that Zhang Ziyi had wealthy boyfriends who lavished her with
expensive gifts.... Given her public persona, and
the fact that she is frequently unabashed about sharing her affections with wealthy
paramour after wealthy paramour, this is almost certainly a given. Zhang Ziyi’s
conduct could be less-than-charitably described as “gold-digging” ..., but it is a far
cry from “prostitution.” If Ms. Ziyi intends to prove that she has never received
any largesse or gifts from her series of wealthy boyfriends, then this will be an
interesting trial to say the least.

As to the second statement, one must wonder what would be defamatory
about claiming that a Chinese national found her travel privileges to be temporarily
restricted. Given that the Chinese government is one of the most totalitarian
regimes in the world, anyone prohibited from leaving the country would find
themselves in good company, if not among some international heroes.... Even if the statement was held to have a defamatory
meaning, and the defendant uttered the statements complained of, the plaintiff
would still run into a legal impossibility – overcoming the actual malice standard
in order for her case to survive.

The filing goes on to point out that Meng followed standard journalistic practices, found multiple sources, and even held back some of the more "salacious" details he could not confirm. Multiple journalism experts have supported his arguments that he followed accepted journalistic practices (or went beyond that). All of which will make it crazy difficult to argue that the report was published out of malice.

The filing also argues that Ziyi seems to be pursuing this case in a process designed to bankrupt Meng, while refusing to put up the required bond herself:

When the defendant moved to strike this case under CCP 425.16, the
Plaintiff immediately took steps to start an expensive and relentless discovery
campaign. Mr. Meng was deposed three times. Mr. Meng produced reams of
documents. The Plaintiff conducted three expert depositions. Throughout all of
this, the Plaintiff has not produced one shred of evidence that Meng’s statements
were false. Even if she were to somehow do so, mere falsity is not enough: she
must also prove that Meng harbored serious doubts about the accuracy of his
published information and recklessly disregarded the truth. Nevertheless, the
Plaintiff’s discovery campaign has done nothing more than create a rock-solid
record that the Plaintiff could never overcome her legal burden. The Plaintiff has,
in an effort to run up the bill on the Defendant, managed to disprove her own case
so solidly, that the “reasonable possibility” standard was left behind long ago.

Meng argues that even if he won a SLAPP suit against Ziyi, she might never pay the attorneys fees, since she does not live in the US.

Plaintiff Zhang Ziyi is an international celebrity with means that far exceed those
of Defendant Watson Meng.... A $200,000 bond will not deprive her of
access to the courts, and will likely not even cover the costs of litigation. The
Plaintiff does not reside in California, and in fact, resides in a country where the
Defendant is persona non grata.... If this court were to grant a fee
award to Defendant, he would not likely find justice if he attempted to enforce that
award in a country whose government considers him to be a thorn in their side, and
where there is no independent judiciary....

Because she does not reside in the State of California, Plaintiff should be
required to post an undertaking so that Meng may be assured of recouping his fees
and costs following the hearing on the Motion to Strike.... The
purpose of Section 1030 is to ensure that a fee award against an out of state
plaintiff is not difficult to collect, or fully illusory. The facts of this particular case
are probably the most extreme example of the necessity of an undertaking under
Section 1030. The Plaintiff is a mega-millionaire with unlimited means; the
defendant is all but impecunious; and the defendant would have no reasonable way
to collect a fee award, as the plaintiff would be able to simply hide behind a border
that the defendant cannot cross. If there was a case that called for a 1030
undertaking, this is it.

The filing also notes that Randazza offered Ziyi's lawyer the opportunity to put forth a different bond amount, but they refused to accept the idea of putting up any money at all, which the filing argues is another sign that they know this is likely to be dismissed under California's anti-SLAPP law.

It will be fascinating to see how this all shakes out, but in the meantime, it seems like yet another case where anti-SLAPP laws may be quite helpful in stopping a lawsuit that has less to do with an actual case of defamation, and plenty to do with trying to make life difficult for a reporter people don't like.

from the slapp-happy dept

2012 has been yet another year filled with meritless lawsuits filed solely to chill First Amendment free speech rights -- so-called Strategic Lawsuits Against Public Participation (SLAPP). As websites relying on user-generated content continue to increase in popularity, we also see a rise in SLAPPs targeting online speech, from the everyday blogger to the one-time online reviewer. Some of the most talked about SLAPPs this year include:

The Oatmeal SLAPP -- Matthew Inman wrote a blog post condemning FunnyJunk for posting hundreds of his comics without crediting or linking back to his website, The Oatmeal. Through attorney Charles Carreon, FunnyJunk sent Inman a threat letter over the blog post, claiming it was defamatory and demanding $20,000. Inman’s response? To publicly post the letter with a hilarious critique and start an online fundraising campaign to raise $20,000. Yet, instead of reaching his $20,000 goal and sending the money to FunnyJunk, he raised over $200,000 and gave all of the money to charity. Carreon couldn’t let it go and filed a lawsuit to try to derail the fundraising campaign, but later voluntarily dismissed it.

SLAPP 4 Jesus -- Even churches are SLAPP happy, as evidenced by a SLAPP filed by Beaverton Grace Bible Church in Oregon against former church members who had blogged and written online reviews of their experiences at the church. The judge ruled that the case was a SLAPP and ordered the church to pay the defendants' attorneys fees.

Rachel Maddow SLAPPed 4 Jesus -- A defamation suit against Rachel Maddow was filed by Bradlee Dean, an anti-LGBT preacher from Minnesota. Dean sued Maddow after she ran a story on The Rachel Maddow Show, where she aired a segment from Dean's radio show where he said that Muslims were "more moral than even the American Christians" because they were "calling for the execution for homosexuals." Luckily for Maddow, Washington D.C. enacted a strong anti-SLAPP law last year. The judge ruled that the case was a SLAPP and ordered Dean to pay Maddow's attorneys fees.

"The Pink Slime" SLAPP -- Beef Products, Inc., a South Dakota beef producer, recently filed a defamation lawsuit against ABC News, seeking at least $1.2 billion in damages, claiming the broadcaster unfairly disparaged its beef additive by labeling it "pink slime." The Complaint was filed last month and ABC has not yet responded.

Fortunately for Inman, the church SLAPP defendants and Rachel Maddow, California, Oregon and Washington DC have all enacted anti-SLAPP statutes. Unfortunately for ABC, Beef Products filed their defamation lawsuit in South Dakota, which does not have an anti-SLAPP law. What this means is that they will not be able to bring an anti-SLAPP motion and potentially get the case dismissed early and have their attorneys’ fees awarded. However, South Dakota is not alone -- almost half of the states have not enacted anti-SLAPP laws, demonstrating the need for a federal law to protect against meritless SLAPPs.

2012 marked the second time federal anti-SLAPP legislation was introduced in Washington DC. In 2009, Congressman Steve Cohen introduced the Citizen Participation Act in the House of Representatives, which ultimately died when it was referred to committee. This year, retiring Senator John Kyl introduced the Free Press Act of 2012. Unfortunately, Sen. Kyl's bill has a very narrow anti-SLAPP provision that only applies to representatives of the news media. But hopefully Senator Kyl's bill can be a starting point to build bi-partisan support for strong and robust federal anti-SLAPP legislation after the November elections. With a recent endorsement of federal anti-SLAPP legislation from the American Bar Association, a national association of attorneys and the world's largest voluntary professional organization, a fresh session of Congress in 2013 looks promising for the future of anti-SLAPP legislation protecting all Americans' right to speak out.

Evan Mascagni is an Organizer with the Public Participation Project, the only organization in the country whose sole mission is to enact federal anti-SLAPP legislation.

from the could-be-better dept

We've been covering the absolutely ridiculous lawsuit of educational software firm Jenzabar against documentary filmmakers Long Bow for a few years now. The short version is that Long Bow made a documentary about some of the activists from the Tiananmen Square uprising, that was somewhat critical of them -- including a protest organizer named Ling Chai. Chai later moved to the US and founded an educational software company called Jenzabar. She has regularly played up her history as a Tiananmen Square organizer in getting PR for the company. The filmmakers called into question some of her actions back during the protests, and also set up a webpage, associated with the movie, critical of Chai. Chai sued for defamation -- which was quickly thrown out. However, she also had Jenzabar sue for trademark infringement, because the page about her on Long Bow's site mentioned Jenzabar in the title and in the meta tags.

The case has gone on for over 3 years now, with an initial ruling against Jenzabar, saying that there was no trademark issue because there was no likelihood of confusion. Jenzabar, however, continued to pour money into the case, appealing the ruling, and claiming that they should still win based on the obsolete theory of initial interest confusion, which suggests there can be trademark infringement even if someone is only misled initially, and quickly realizes the situation. In this case, Jenzabar argued -- somewhat ridiculously -- that initial interest confusion might apply to someone doing a Google search on Jenzabar, and then go to the Long Bow page, believing that it was associated with the company, only to discover, upon loading, that it was not. If such a theory were valid, it would be a huge tool for trademark bullies to take down all sorts of critical commentary about their companies or products.

Thankfully, the appeals court has now affirmed the initial ruling, saying that there is no trademark infringement issue here at all. Unfortunately, it chose to do so somewhat narrowly, lending credence to some of the troubling theories raised by Jenzabar. That is, rather than just recognizing that this case is a clear attempt to abuse trademark law to stifle critical speech, the court decided to go through a full "five factors" test to determine if something is trademark infringement via initial interest confusion.

There are serious problems with the court going this route. The folks over at the Digital Media Law Project (who filed an amicus brief in the case) have highlighted some of the concerns:

But by choosing to approach the trademark infringement question in the way that it did, the court perpetuated certain problems that we flagged in our brief. Applying the standard infringement factors to critical speech forces to the court to come to some awkward conclusions about how the factors should apply, and leaves open some potentially odd results in future cases. This analytic tension in applying a likelihood of confusion analysis to critical speech permeates the majority’s analysis. Some highlights follow below:

Similarity of the parties' goods: This is a classic factor in trademark infringement analysis, and when applied to two market rivals using similar marks to sell their goods it makes a great deal of sense: the more similar the goods are, the more likely a consumer may be confused looking at those goods. But here the application makes no sense whatsoever.

The court here notes (quite correctly) that Jenzabar sells educational software systems and Long Bow makes documentary films. Those two fields are unrelated, and thus the court held that this factor favors Long Bow. That is convenient for Long Bow, but in this context it is irrelevant. Consumers looking at critical speech are not any more likely to be confused as to the origin of the speech because it comes from a market competitor. To hold this as relevant is to say that Reed Elsevier or the New York Times would be more successful in attacking critical speech on trademark grounds, because those publishing criticism usually do so at media and publishing companies.

Paul Levy, from Public Citizen, who represented Long Bow in the case, raises a few other concerns about the ruling, including that this decision to go through the detailed factors test will allow trademark bullies and others pursuing SLAPP-type litigation to increase the time and expense for those they are suing -- a clear concern for Long Bow in this case:

Long Bow Group burned though more than $250,000 in legal fees on preliminary motions and discovery, and veered close to bankruptcy before it found public interest lawyers who were willing to assume responsibility for the litigation; the Appeals Court upheld summary judgment after a review of a joint appendix more than 2700 pages long. Unlike other recent decisions that dismissed claims of “initial interest confusion” out of hand, such as because the Internet critic was not benefitting financially, or because “momentary confusion [is] dispelled the moment the Internet user reaches [underlying] site,” the Appeals Court conducted a lengthy analysis of the summary judgment record to reach that conclusion. To be sure, many of the undisputed facts on which the court relied are likely to be found in most cases where a critic’s page about a trademark holder has appeared prominently in the search results. In the end, the only evidence Jenzabar had was the search result itself, and the Appeals Court properly ruled that this is simply not enough to avoid summary judgment. Yet if avoidance of a trial depends on a painstaking analysis of a detailed summary judgment record—and if future abusive trademark litigants can avoid early summary judgment by arguing that they hope to compile a better record through extensive (and expensive) discovery—there will be many Internet critics who will find the cost of a legal defense too great a barrier to continued exercise of their free speech rights.

This is a huge concern. Levy also notes that, if Jenzabar appeals (and all indications are that it will do so), he will seek to get the higher court to affirm on the grounds that "the theory of initial interest confusion is itself a bankrupt doctrine."

Levy raises one other problem with the ruling. We had talked about how Jenzabar had found an "expert witness" who argued that Google relied on keyword metatags to determine search rankings, in an effort to prove that Long Bow's use of "jenzabar" in its metatags impacted Google results. There was, however, a big problem with this claim: Google has stated publicly for years that it does not use keyword metatags. When this was pointed out, Jenzabar insisted that public statements from Google employees to this point were hearsay. Unfortunately, the court still seemed willing to entertain the testimony:

Another aspect of the decision that may take litigation in this area a step backward is the apparent acceptance of a confusing expert’s affidavit as being sufficient to create an issue about whether inclusion of a trademark in a keyword meta tag can raise the search ranking of a page containing that meta tag. The Appeals Court acknowledged official statements by Google, cited by the Ninth Circuit and the McCarthy treatise, to the effect that search engines no longer take account of the keyword meta tag, but if a wealthy litigant can avoid summary judgment by hiring an expert witness who is willing to say whatever he needs to say to get paid (and we thought that the expert very carefully tiptoed around the issue of the impact of keyword meta tags, rather than addressing them directly), the social utility of the truth as a bar to litigation is substantially reduced.

In the end, while it's clearly a good thing that the summary judgment against Jenzabar was upheld, there are some problems with the ruling. Given the expectation that the case will be appealed, hopefully the Supreme Judicial Court will correct some of these flaws.

from the just-saying dept

We've written about SLAPP (Strategic Lawsuits Against Public Participation) many times in the past -- and they're frequently about people using the legal system to try to silence someone who wrote something that portrays them in a way they don't like. Thankfully, California and a few other states have decent anti-SLAPP laws that allow such lawsuits to be tossed out fairly quickly. But those who file SLAPP lawsuits still quite frequently have a difficult time coming to grips with the fact that people can report factually on stuff that still makes them look bad. It appears we have one such case happening now (sent in by Tom), which may be leading up to the possibility of a rare double-SLAPP, in which someone potentially files a SLAPP lawsuit against someone who reported on them losing another SLAPP lawsuit. How meta would that be?

Let's take a step back. In May of this year, Steve Pond at TheWrap.com published an article about accusations being made against a San Francisco socialite Elisabeth Thieriot by film producer Raul Julia-Levy. The details aren't particularly important, other than this: there was a documentary being worked on about the Mayan calendar. There was a falling out between Thieriot, who helped finance the film, and the film's producer, Raul Julia-Levy. As the original article makes clear, there have been accusations made that Julia-Levy's credibility isn't that strong -- but the article did report accurately that he has made certain accusations against Thieriot, that she filmed without a valid permit and that she fled the country with footage, despite being asked to stay.

Thieriot then sued TheWrap for defamation, but last month, an LA court dismissed the claim on anti-SLAPP grounds, noting that Thieriot failed to show that the statements made in the original article were false, or that the statements were made maliciously. The failure to prove that the statements were false is pretty much the end of any defamation claim, and the anti-SLAPP process makes it quick and easy... and opens up Thieriot to the possibility of having to pay TheWrap's legal fees.

Plaintiff fails to produce evidence showing that the statements in the article were false. The article reports on allegations made by levy against plaintiff.... The article at multiple points indicates that the accusations came from Levy and the article at no point states that plaintiff actually committed the alleged acts. The article does not state that plaintiff has been charged with any crime. Indeed, the article at several points indicates that Levy had been previously accused of dishonesty.

And then... Thieriot apparently decides that, despite having already lost a SLAPP suit, that she's going to threaten this other blogger for writing about the fact that she lost her SLAPP suit. The argument shown in the letter that Thieriot's lawyers allegedly sent, which was posted to the SFCitizen site, is that because the blogger only stated (the factual info) that she had lost her SLAPP suit... without also including information on the reliability of the source for the original TheWrap column, this somehow was a form of defamation.

While the blog's title suggests it's been "sued," it appears that it's just been nastygrammed at this point. But that letter certainly appears to be threatening a nearly identical kind of SLAPP suit, in which they claim defamation over things that are true as stated, but which Thieriot feels doesn't properly give deference to her side of the story. We all saw how it turned out the first time around. Could it be time for a double-SLAPP on someone filing a SLAPP over someone reporting on how they lost their original SLAPP? Exciting times...

Oh, and we can't let this one go without pointing out that I'd thought most lawyers by this point had learned that lines like "you are not authorized to disclose the contents of this letter publicly or to disseminate it..." only serve to make whoever sent the letter look ridiculous for claiming things that simply have no basis in anything. Apparently, however, there are still some out there.

from the this-isn't-going-to-end-well dept

What is it with super rich sports owners and SLAPP suits? Remember Redskins owner Dan Snyder? Well here's a situation that seems even more ridiculous. Ranaan Katz is a minority owner of the Miami Heat, who just won the NBA championship. You might think he'd be pretty happy right now. Instead, he's suing a blogger and Google, claiming a copyright violation over of an "unflattering photo." Seeing as the photo in question is now quite newsworthy, here it is (and we're happy to explain fair use theories to Katz's lawyers, if they'd like):

The full story is even more ridiculous as you dig into the details. It turns out this is the second time that Katz has gone after this blogger. The first time was for defamation. For what? For running a blog that talked about Katz and his company... and, from the sound of things, posted legal documents that apparently Katz didn't want posted.

Where it gets really bizarre is the massive overreach on the defamation side of things. Because the bar for defamation on a public figure it quite high, Katz's lawyers claim that he's not a public figure -- despite being an owner of the Miami Heat, despite being a well-known successful real estate developer, and despite the fact that there's a street named after him and an "official day" in his honor. Instead, his lawyers have argued that getting the press to report on Katz's legal overreach is an attempt "to make Katz a public figure" even though he clearly is one and has been one. Either way, the blogger, represented by Marc Randazza, responded strongly to the ridiculousness of Katz' original lawsuit. You can see that response below, calling out the fact that a demand for an injunction against any future publication on the blog (as Katz requests) is clear prior restraint and based on no accepted legal theory in a defamation case.

Separate from that lawsuit, it looks like Katz and his lawyers have now tried a second approach, which appears to be an attempt to use the DMCA to censor. He claimed that the "unflattering image" above violates his copyright. A DMCA takedown was apparently issued to Google, who refused to comply. So now both the blogger and Google have been sued. Of course, it's unclear to me how he even holds the copyright in the photo, since he didn't take it. Either way, given the previous actions in the case, it certainly feels like this is a SLAPP-style suit, filed just to be a nuisance to the blogger who didn't fold under the defamation claims (and yes, to Katz's lawyer, that's an opinion). Update: I've added the filing in the copyright lawsuit below, which adds one other detail: the photograph is not registered for copyright in the US. Katz's lawyers point out that since the photo was originally from Israel it doesn't need to be registered, which is true, but could limit the effectiveness of any lawsuit. Separately, according to Randazza, Katz claims to have had the copyright in the photo assigned to him from the original photographer. None of that changes any of the analysis here about the lawsuits in question.

Of course, all this has really done is activate the Streisand Effect, and get a lot more attention to Katz, to the lawsuits, to the blog and, of course, to the photo itself. You would think that someone with so much money and business success would have thick enough skin to know how to ignore such things. In the meantime, Randazza has pointed out how bizarre it is to go from suing an individual blogger to adding one of the largest companies in the world to the fight on the other side, for no good reason:

My guess is that their strategy is this: If you keep whiffing against a small time blogger, you might as well then just pick a fight with one of the biggest companies in the world. Sit back and get your popcorn and watch how this one works out. I want to thank Mr. Katz for bringing in an 800 lb gorilla to help me in his unsupportable SLAPP suit.

We have yet to speak to Google's lawyers about this case, but we expect that they will be receptive to standing up for the First Amendment along with us.

Sometimes I think there should be mandatory training on the Streisand Effect before one is allowed to become a lawyer.

from the wow dept

Wow. Just... wow. Following the net fight between The Oatmeal webcomic creator Matt Inman, and aggregator of non-funny stuff, Funnyjunk, we've been pointing out that Funnyjunk's lawyer, Charles Carreon needs to stop digging himself deeper into the hole he's found himself in. Instead, he seems to have decided on the opposite strategy, and he's digging deeper and deeper every minute.

If you don't recall, he was trying to shut down the fundraising effort that Inman set up in response to Funnyjunk's threat. And then he accused Inman of "instigating security attacks" against his website. The latest is that he's now redirected his own website to a sales page for his book, but also has done an interview with Dave Thier at Forbes, in which he's even more aggressive in fighting back against Inman and those who are mocking him. It's really quite incredible. Thier describes Carreon as being "excited about this bizarre new world he had stumbled into" and now focused on somehow pinning the blame on Matt Inman:

In his 20 years as a lawyer, he says, he’s written hundreds of letters like the one he sent Inman, but the response to this one was unique.

“So someone takes one of my letters and takes it apart. That doesn’t mean you can just declare netwar, that doesn’t mean you can encourage people to hack my website, to brute force my WordPress installation so I have to change my password. You can’t encourage people to violate my trademark and violate my twitter name and associate me with incompetence with stupidity, and douchebaggery,” he says. “And if that’s where the world is going I will fight with every ounce of force in this 5’11 180 pound frame against it. I’ve got the energy, and I’ve got the time.”

Except, uh, nowhere has Inman "declared netwar" nor has he encouraged anyone to hack Carreon's website. If it's true that scriptkiddies have gone after Carreon's website, that's unfortunate, but it's a ridiculous (and obnoxious) stretch to pin the blame for that on Inman. Of course, associating someone with incompetence, with stupidity and with douchebaggery is broadly a statement of opinion. There's a First Amendment thing we have that generally says that's okay. People can call each other stupid douchebags, and we like that in America.

The implications of Mr. Carreon's position are profoundly chilling. Under the rule he seems to suggest, if you write about bad behavior by someone else, even if you don't urge action, you run the risk that you will be held liable when one of your readers is inspired to hack or threaten or harass. Perversely, this means that the more criminal or unconscionable or horrific the conduct you are describing, the greater legal risk you take by writing about it. That's not the law, thank God. The very suggestion is un-American and contemptible.

Moreover, note that Mr. Carreon is suggesting that it is actionable not only to inspire people to undertake (alleged) illegal action, but actionable to inspire people to "associate me with incompetence with stupidity, and douchebaggery." In other words, if your criticism of someone's conduct leads others to form an opinion of him, and express that opinion, that's actionable. That's true to the extent that someone states false facts about a person — for instance, by falsely accusing them of child abuse. But The Oatmeal offered satirically expressed opinions about Mr. Carreon's conduct in a letter which The Oatmeal presented to his readers to review. To the extent that The Oatmeal opined that Mr. Carreon is incompetent, stupid, and a douchebag, those are classic opinions absolutely protected by the First Amendment. Under First Amendment law governing defamation, they are particularly protected because The Oatmeal presented the facts based on which he drew his opinions — namely, the letter itself. Under the theory that Mr. Carreon seems to be advancing, if I wrote you a letter suggesting that your wife beds down with diseased ocelots and calling for your children to be flogged, and you publish the letter and say that it suggests that I am a disturbed person of low character, then I would be legally responsible if people formed the same opinion based on the evidence you provided. Indeed, under Mr. Carreon's apparent theory, if he criticizes The Oatmeal's response to him as vulgar or unprofessional or uncivilized, he's legally responsible for people agreeing with him. This is not law, this is madness. And bear in mind that Mr. Carreon markets himself as a First Amendment champion.

But Carreon has decided that "there must be a law!" against this, and dammit, he's going to find it:

He may have a very difficult time proving that Inman “instigated attacks,” as he said on his website, but he’s certain he can find some legal recourse for what’s going on right now – “California code is just so long, but there’s something in there about this,” he says.

Back to Ken at Popehat, who notes in response, why yes, there is a law:

Read them carefully. And think. Think hard. Step back from the precipice. This can get better, by you letting it go. Or it can get worse. Much, much worse.

Carreon tells Thier that he welcomes "the opportunity to confront legally the misuse of a new technology." First of all, it's not that new, and he might want to do some digging into other clueless lawyers who have sought to shut down online criticism of themselves. Carreon is still digging and he's going to lose very, very badly in court with the arguments he's making right now. Given his statements to various reporters, he's already made it clear that he's seeking to suppress speech and that he's willing to use any law he can find to do so. That's a particularly short-sighted thing to do, given California's relatively strong anti-SLAPP law, which one hopes Carreon familiarizes himself with.

But, really, there's the bigger issue: what the hell is he thinking at this point? And isn't there anyone with a basic grasp of the internet who knows him who can sit him down and tell him to stop digging?

from the time-for-a-federal-anti-slapp-law dept

We've covered, repeatedly, the problems of people using SLAPP -- Strategic Lawsuits Against Public Participation -- lawsuits against people trying to speak their opinion. While some states have anti-SLAPP laws (with the quality of those laws being quite mixed), we still believe that we really need a strong federal anti-SLAPP law. If you're not familiar with SLAPP lawsuits, they are lawsuits with little basis that are filed with the sole purpose of silencing someone who is speaking out in some manner.

Last week, Glenn Greenwald, over at Salon, went into tremendous detail in accusing Mitt Romney's billionaire national finance co-chair, Frank VanderSloot (oddly, links to this page don't seem to work, but if you go to Greenwald's blog you can still get to it -- at the same URL), of regularly using SLAPP-like suits or threats of SLAPP-like suits to silence critics. He lays out a number of examples, involving publications both big (Mother Jones, Forbes) and small (various small time bloggers). Unfortunately, it appears that many of those publications simply backed down, often removing the material entirely. You would think that publications like Forbes and Mother Jones would stand up to such actions, but they both took down the articles critical of VanderSloot, though Mother Jones eventually (a week or so later) posted a new version that was apparently edited to address the complaints.

VanderSloot is CEO of Melaleuca, which has been described as a multilevel marketing company. In that Forbes article, Melaleuca is described as a "a pyramid selling organization." Elsewhere, in complaints to the government, it has been described as a "pyramid scheme." VanderSloot and Melaleuca have argued, however, that it is not a "pyramid scheme." He's also been very politically active, not just in the Romney campaign, but various other political campaigns -- including paying for billboards to speak out against the local PBS station showing a particular documentary about gay issues. Forbes recently used this story to suggest that VanderSloot was "a large contributor to a number of anti-homosexual causes." That article has since been removed but copies can be found online. Greenwald also details a blog post by James Tidmarsh on the site IdahoAgenda, which claimed that VanderSloot "has a pretty solid anti-gay history in Idaho." VanderSloot and his lawyers appear to take exception to such claims, and the Tidmarsh blog post has since been removed after he apparently received multiple communications pressuring him to take the post down or face consequences.

As we've seen in SLAPP cases we've looked at in the past, at times he uses copyright to try to threaten legal action -- including in one case where his lawyers registered the copyright on a takedown letter they sent a blog, which they then used to claim infringement against the person who posted the letter on the site (to explain why the original blog post was removed). In that case, since it involved anonymous bloggers, VanderSloot's company, Melaleuca also tried to issue subpoenas to identify the bloggers. Similarly, they apparently claimed copyright infringement in a letter to a blogger who made use of a VanderSloot corporate headshot -- a common practice, and one for which there is at least some legal precedence for fair use (and that threatening over such uses can be seen as a SLAPP attempt).

We've seen many similar cases, but Greenwald lays out so many similar stories involving VanderSloot and Melaleuca (many with detailed citations), that I'm kind of surprised that we hadn't come across these before. Either way, you can tell that Greenwald (who is a lawyer) was quite careful in drafting his writeup, most likely expecting at least some pushback. He also highlights the cause of one blogger, Jody May-Chang, who does not seem to want to back down against VanderSloot, after having received a letter (pdf) recently about an old blog post (for which it's likely any defamation claim is long past the statute of limitations).

Once again, stories like these really highlight the need for a strong and clear federal anti-SLAPP law. It would certainly be interesting for someone in the political press to ask Mitt Romney for his position on a federal anti-SLAPP law, given his relationship with VanderSloot. Either way, I feel it's a shame that we don't have such a strong federal anti-SLAPP law in place already. Such a law would go a long way towards protecting basic First Amendment principles. I'm always most amazed at the rich and powerful using these types of tactics (see: Snyder, Dan) not just because such people are public figures (where the bar for any defamation claim is significantly higher), but because you would think that, having gotten to such a level, they'd be secure enough in their arguments that having random publications snipe at them should be of little concern.

from the everything's-bigger-in-texas dept

Paul Alan Levy has nicely summarized two stories about Texas moving to better protect free speech. The first involves the Texas Supreme Court overturning a lower court's ruling to deny a motion from a couple of anonymous bloggers whose identity was being sought in a lawsuit. There's a bit of confusion concerning Google's role in this, but the company seeking the identity of the bloggers claimed that Google had agreed to cough up their names (Google suggests a slightly different story), and the court said that since the discovery was between Google and this other company (PRK Enterprises), the motion to quash from the bloggers could be denied. Thankfully, the Texas Supreme Court felt otherwise.

The second story may be even bigger news. We've covered anti-SLAPP laws many times, including the effort for a federal law, somewhat modeled on California's anti-SLAPP law, which is considered one of the most comprehensive. However, it appears that a bill is moving forward with plenty of support in Texas to create an anti-SLAPP law there that isn't just modeled on California's law, but may go even further in protecting speech. I guess it's true that they really do everything bigger in Texas...